Manitoba Daily

Friday, January 21, 2022

Employers telling U.S. Capitol rioters ‘you’re fired!’

Unmasked rioters posed for photos — apparently believing they could act with impunity

Most of us were stunned by the footage of the U.S. Capitol being overtaken by rioters last week resulting in four people dying during the unprecedented clash.

Remarkably, unmasked rioters even posed for photos — some gloating on their social media feeds about participating in a “revolution” as they broke windows, scaled walls, stormed hallways and sat for photo-ops in the chairs of U.S. Senators after trashing their offices.

It seems these rioters believed they could act with impunity and suffer no reprimand or rebuke for their open and reprehensible behaviour. A silver lining from this sordid tale? They are wrong.

Various news outlets have reported that a growing number of rioters have been identified by their employers and have lost their jobs or been placed on indefinite leaves.

After spotting one of its employees in the Capitol wearing an employee badge, Navistar Direct Marketing released a statement saying in part “after review of the photographic evidence the employee in question has been terminated for cause. While we support all employees’ rights to peaceful, lawful exercise of free speech, any employee demonstrating dangerous conduct that endangers the health and safety of others will no longer have an employment opportunity with Navistar Direct Marketing.”

After seeing footage of its employee at the Capitol, Goosehead Insurance took to Twitter to report the following: “Paul Davis, Associate General Counsel, is no longer employed by Goosehead.”

Even an NICU nurse from Ontario, Kristen Nagle, has been placed on an unpaid leave by the London Health Sciences Centre pending an investigation after confirming on social media that she went to Washington to participate in the events in support of the Global Frontline Nurses.

Social media has been rife with support for the “revolution” and there is no doubt that organizations will similarly take action against employees who publicly support the criminal conduct and violence seen during the Capitol riot.

An employer can terminate an employee for misconduct outside of the workplace in some circumstances. For example, Navistar’s termination of its employee for cause may well be supported by the current case law. There is a precedent in Ontario for such a termination.

Some of you may remember the story of Philip Kelly, a well-liked employee at Linamar in Guelph. Kelly was considered to be a good employee, however, he was criminally charged with possession of child pornography. He was terminated for cause and subsequently sued for wrongful dismissal damages. His claim was denied by the court.

In denying Kelly’s claim, the court noted with respect to outside misconduct that is cause for dismissal, a termination is justified when an employee’s conduct is prejudicial or likely to be prejudicial to the interest or reputation of the employer and that a single incident is sufficient to justify a dismissal whether or not the misconduct is serious.

It is undeniable that a person who violently stormed the U.S. Capitol, posed for photos and gloated on social media about the illegal siege is an act of moral turpitude so abhorrent it could very well bring a stain on the reputation of any employer that would not easily be washed away.

Whether or not Navistar will be required to respond to litigation on this case is yet to be seen. However, the court of public opinion on the tolerance for such behaviour has already rendered judgment. These acts cannot go unpunished.

For those who did not storm the Capital but supported the cause from afar online and in writing, beware that you too may be rounded up as a workplace casualty — especially if your employer maintains a reputation that it jealously protects.

On to your questions from this week:

Q. I have a quick question about whether company that list job postings are legally allowed to ask questions related to gender, race/ethnicity, whether I am a member of the LGBTQ community, etc., during the application process? I am quite surprised that I am submitting my resume to various companies via their job postings website and that many of them end the application process with these types of questions. I answer them, fearing that I may be disqualified from the process, but don’t see how gender, ethnicity, etc. has any relevance to skills and qualifications for a PR/Marketing position.

A. Usually these questions are voluntary and not mandatory if asked. I notice employers tend to ask these questions if they have a “diversity” mandate allowing you to self-identify if you choose to. If you do identify with one of these groups, you may receive, in theory, more favourable prospects of obtaining an interview.

Q. If someone at my workplace has COVID, doesn’t my employer have to report it to the government?

A. The answer could be yes depending on where you work. The City of Toronto has recently enacted a rule requiring employers to report outbreaks of two or more employees testing positive for COVID within a 14-day period. Besides that, it is prudent to call your local public health official if any employee tests positive for the virus in order to ensure your organization is complying with the latest guidelines to keep your workplace safe.

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